United States v. Fernell Starnes ( 2013 )


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  •                                     In the
    United States Court of Appeals
    For the Seventh Circuit
    No. 13-1148
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.
    FERNELL A. STARNES,
    Defendant-Appellant.
    Appeal from the United States District Court for the
    Northern District of Illinois, Western Division.
    No. 3:09-cr-50015-1 — Frederick J. Kapala, Judge.
    ARGUED NOVEMBER 8, 2013 — DECIDED DECEMBER 23, 2013
    Before POSNER, ROVNER, and WILLIAMS, Circuit Judges.
    ROVNER, Circuit Judge. After receiving citizen complaints of
    drug trafficking, the Rockford Police Department arranged an
    undercover controlled purchase of crack cocaine from a lower
    level apartment at 922 North Church Street in Rockford,
    Illinois.1 Three days later, the police secured a warrant to
    1
    As we recite the facts in this case, it occurs to us that this is a good time
    to remind the bar that judges, like most other people, prefer to read briefs
    (continued...)
    2                                                            No. 13-1148
    search “922 N. Church Street lower apartment, Rockford
    Illinois.” The warrant described the premises to be searched as
    a “two story, two-family dwelling, white with black trim,
    located on the west side of street with the numbers ‘922’
    appearing on the front of the residence with lower apartment
    being located on the ground floor.” The lower apartment was
    actually the lower level of a two-story house that had been
    converted from a single family residence into a two-flat.
    The police knew that they would be facing two obstacles
    when they executed the search. The first was that mere hours
    before the planned raid, a shooting occurred at the residence.
    Police officers conducting raids assume that drug dealers are
    armed (and the assumption is generally correct, as weapons
    are a necessary tool of the drug trade. United States v. Gulley,
    
    722 F.3d 901
    , 908 (7th Cir. 2013)), but the recent shooting
    increased the risk that the weapons were loaded and ready and
    the possessors of those weapons were agitated and on high
    alert. The police officers also knew that two aggressive pit bulls
    lived on the premises.
    1
    (...continued)
    written in straightforward, plain language and not legalese. Beginning each
    sentence with the word “that” or preceding each previously described
    concept with the word “said,” and other oddities stereotypically associated
    with lawyers, disrupts the flow of a brief and thus weakens its impact. The
    same is true when a brief recites the facts by describing each witness’
    testimony piecemeal rather than by telling a story chronologically. As
    judges we are able to divorce the distracting text from the content in
    evaluating a case, but the role of a prudent advocate is to make the court’s
    job easier, not more difficult. There are many illuminating books on writing
    effective briefs and every practitioner before this Court would be wise to
    invest a few hours in reading one.
    No. 13-1148                                                   3
    After knocking on the front door of the house and receiving
    no response, investigators forced their way into the building.
    The first officer to enter the house found himself in a small
    foyer with two open doors. One door led to the first floor
    apartment. The other door led to an initial set of ascending
    stairs, four or five of which were visible before they turned at
    a landing. The office immediately encountered a pit bull who
    initially turned and ran away from the officer, through the
    open door to the stairway, and up a few steps toward the
    upper apartment, before altering course and charging toward
    the officer. The officer shot and killed the dog on the first
    landing and then proceeded up those same stairs to perform a
    protective sweep of the upper apartment. As he ran through
    the kitchen of the upper apartment, he noticed on the counter
    various mixing bowls, several large chunks of an off-white
    substance, some scales and rubber gloves. In the bedroom he
    discovered the defendant, Fernell Starnes, and a woman in
    bed. The officer detained Starnes and the woman and escorted
    them downstairs. Other officers then left to seek a second
    warrant to search the upstairs apartment, leaving one officer
    behind at the bottom of the stairs to prevent anyone from
    entering the apartment.
    While some officers were seeking the second warrant, other
    detectives searched the lower apartment (for which they
    already had a warrant) and seized two semi-automatic rifles,
    two loaded ammunition magazines, a loaded .45 caliber
    semiautomatic hand gun, and drug trafficking paraphernalia.
    After executing the search warrant on the second floor, the
    officers seized Starnes’ photo identification cards, approxi-
    4                                                     No. 13-1148
    mately 290 grams of cocaine, 72.5 grams of cocaine base,
    $36,186 in cash, and more drug trafficking paraphernalia.
    The government charged Starnes with possession with
    intent to distribute cocaine in violation of 
    21 U.S.C. § 841
    (a)(1),
    possessing a firearm as a felon in violation of 
    18 U.S.C. § 922
    (g)(1) and possessing a firearm in furtherance of a drug
    trafficking offense in violation of 
    18 U.S.C. § 924
    (c)(1)(A).
    Starnes moved to suppress the evidence seized from the
    second floor after the execution of the second search warrant.
    After an evidentiary hearing, the district court denied the
    motion to suppress. Eventually Starnes entered a guilty plea
    but reserved his right to challenge the denied motion. The
    lower court sentenced Starnes to serve consecutive sentences
    of 63 months on Count 1, and 60 months on Count 2. He now
    challenges the district court’s ruling on the motion to suppress,
    arguing that the evidence seized from the upper apartment
    could not be considered because investigators initially entered
    the apartment without a warrant or any other lawful reason to
    enter.
    We review de novo a district court's legal conclusion that
    the police acted reasonably in performing a protective sweep.
    United States v. Tapia, 
    610 F.3d 505
    , 510 (7th Cir. 2010). And we
    review factual questions for clear error. United States v. Delgado,
    
    701 F.3d 1161
    , 1164 (7th Cir. 2012). Questions about whether
    the particular circumstances supported a warrantless search
    often involve mixed questions of law and fact, which we
    review de novo. 
    Id.
    Our analysis starts with the presumption that warrantless
    searches and seizures within a home violate the Fourth Amend-
    No. 13-1148                                                        5
    ment’s prohibition against unreasonable searches and seizures
    unless they fall into one of the numerous exceptions, including
    protective sweeps. Kentucky v. King, 
    131 S. Ct. 1849
    , 1856 (2011).
    A protective sweep is a quick and limited search of premises
    conducted to protect the safety of police officers or others.
    Maryland v. Buie, 
    494 U.S. 325
    , 327 (1990). Under certain
    circumstances such a sweep is permissible because legitimate
    governmental interests outweigh an individual’s interest in the
    protection of the Fourth Amendment. 
    Id. at 331
    . In general, the
    Fourth Amendment permits a protective sweep
    if the searching officer possessed a reasonable belief
    based on specific and articulable facts which, taken
    together with the rational inferences from those
    facts, reasonably warranted the officer in believing
    that the area swept harbored an individual posing a
    danger to the officer or others.
    
    Id. at 327
     (internal citations omitted); Tapia, 
    610 F.3d at 510
    , Leaf
    v. Shelnutt, 
    400 F.3d 1070
    , 1086 (7th Cir. 2005). The sweep must
    also be justified by more than a “mere inchoate and
    unparticularized suspicion or hunch,” regarding the danger.
    Buie, 
    494 U.S. at 332
    , Tapia, 
    610 F.3d at 510
    . The search must be
    cursory, lasting no longer than is necessary to dispel the
    reasonable suspicion of danger. Buie, 
    494 U.S. at
    335–36; Tapia,
    
    610 F.3d at 510
    . It must also be limited to a cursory visual
    inspection of places where a person might be hiding. Buie, 
    494 U.S. at 327
    ; Tapia, 
    610 F.3d at 510
    .
    The inquiry is an exceptionally fact-intensive one in which
    we must analyze myriad factors including, among other
    considerations, the configuration of the dwelling, the general
    6                                                   No. 13-1148
    surroundings, and the opportunities for ambush. United States
    v. Burrows, 
    48 F.3d 1011
    , 1016 (7th Cir. 1995). An ambush in a
    confined setting of unknown configuration is just such a
    situation in which an officer might need to perform a protec-
    tive sweep. Buie, 
    494 U.S. at 333
    , Tapia, 
    610 F.3d at 511
    .
    In this case there were many other substantial, particular-
    ized factors that would allow a reasonable officer to conclude
    that he, his fellow officers, or another bystander might face
    danger. First, the officers had reliable information that drugs
    were being sold from the lower unit of the house and that a
    shooting had occurred on the premises just a few hours prior.
    The officers had also been informed that there were two
    aggressive pit bulls on the premises and that only one had
    been subdued. The doors to both the second floor and first
    floor apartments were open, and the two apartments had been
    carved out of a former single family home. In fact, it appeared
    to some of the officers as though the home might be being used
    as one unit (and indeed, it turns out that it was). Moreover, the
    police could not have known for certain whether there were
    other points of access between the two units, such as a back
    staircase or a fire escape, and whether, therefore, a dangerous
    dog or person might be moving between the two units. In fact,
    the aggressive dog initially ran toward the upstairs apartment
    indicating that the dog might be protecting someone on the
    upstairs floor. Finally, because one of the detectives was forced
    to fire multiple shots at an attacking dog immediately after
    entering the house, the officers knew that any occupants
    quickly would have been alerted to their presence by the
    gunfire.
    No. 13-1148                                                    7
    Furthermore, the search itself appears to have been short,
    cursory, and limited to only those places that a person might
    be hiding. See Buie, 
    494 U.S. at
    335–36. The sweeping officer ran
    through the apartment looking briefly into the bathroom, the
    kitchen, and the bedroom. He did not need to open any
    cabinets or drawers or touch anything to see the suspicious
    looking white substance and drug-selling paraphernalia on the
    kitchen counter. Once the police discovered Starnes and his
    companion, they secured and removed them immediately and
    vacated the upper unit. In the meantime, all of the police
    officers remained outside of the second-floor apartment until
    the court issued the warrant. One police officer was stationed
    at the landing of the ascending stairs to ensure that no one
    entered.
    This case is the fraternal twin of our decision in Tapia, 
    610 F.3d at 505
    . In that case, the Rockford police approached the
    residence of a drug dealer and convicted felon armed with a
    warrant to arrest, but not search. Upon arriving at the house,
    the police noticed another gang member’s vehicle parked in
    the driveway. After a few minutes of knocking on the front
    door, a police officer stationed at another location outside the
    house noticed that someone had just exited the basement.
    Moments later, having walked out of the basement stairwell
    and through the living room, the defendant, Tapia, opened the
    front door. The police arrested Tapia and performed a protec-
    tive sweep of the rest of the residence, including the basement
    where Tapia had been, and discovered a gun. Just as the police
    did here, the Rockford police returned with a search warrant
    to conduct a complete search of the house. Due to the discov-
    ery of the gun, the government charged Tapia with being a
    8                                                  No. 13-1148
    felon in possession of a firearm. Tapia, like Starnes, moved to
    suppress the evidence of the gun, arguing that the protective
    sweep of the basement was unreasonable. 
    Id.
     at 507–08.
    Just as is the case here, the holding in Tapia was very much
    fact-dependent. The court concluded that the officers had
    reason to believe that other gang members could be present at
    the house and pose a threat to officers. The conclusion was
    supported by the following facts: Tapia was the leader of a
    gang and on parole for a 2005 unlawful use of weapons
    conviction; he was living in the basement of the residence with
    other gang members; Tapia’s gang and rival gang members
    had recently been shooting at each other on nearby streets;
    there was a Lincoln Navigator in the driveway which the
    police thought belonged to a fellow gang member and was
    large enough to hold five or six people; Tapia emerged from
    the basement. The court concluded that the officers had reason
    to believe that armed gang members could be in the basement
    and therefore might pose a threat to the police.
    The Tapia court specifically rejected the defendant’s
    argument that the officers could have adequately protected
    themselves simply by guarding the basement door. Similarly,
    in this case the district court determined that there was good
    reason to believe that securing the door to the second floor
    apartment without doing a protective sweep may not have
    been effective and could have subjected the officers to ambush.
    In Tapia we relied heavily on another fact-intensive finding
    in the seminal case of Buie. In Buie, two men—one wearing a
    red running suit—committed an armed robbery. The officers
    eventually secured an arrest warrant for Buie and after
    No. 13-1148                                                   9
    confirming that he was home, entered the house to arrest him.
    Once inside, several officers fanned out through the first and
    second floors. One officer stood at the top of the basement
    stairs and ordered anyone hiding there to come out. Eventually
    Buie emerged and was arrested. A second officer entered the
    basement and performed a protective sweep to ensure that no
    one remained hidden. While there, he noticed a red running
    suit in plain sight on a stack of clothing. Recognizing the risk
    of ambush, the Supreme Court announced the holding that
    carries the day today:
    The Fourth Amendment permits a properly limited
    protective sweep in conjunction with an in-home
    arrest when the searching officer possesses a reason-
    able belief based on specific and articulable facts
    that the area to be swept harbors an individual
    posing a danger to those on the arrest scene.
    Buie, 
    494 U.S. at 337
    .
    Starnes argues that Buie and Tapia can be distinguished as
    they both addressed protective sweeps incident to an arrest in
    a home rather than the execution of search warrant. The
    philosophy behind a protective sweep, however, remains the
    same regardless of how the officers arrived in the home. When
    officers enter the residence of a criminal suspect and have
    reason to believe that a particular area might harbor an
    individual (or as in this case, an individual and an animal) who
    poses a danger to the officers or others, the Fourth Amendment
    permits a quick and limited protective sweep. As the Supreme
    Court reasoned, officers who are in a criminal suspect’s home
    face the disadvantage of being on an adversary’s turf and
    10                                                    No. 13-1148
    subject to ambush. Thus the constitutionality of a protective
    sweep does not depend on whether that sweep is incidental to
    a search warrant, an arrest warrant, or a consensual search. See
    e.g. Leaf, 
    400 F.3d at 1087
    . See also, United States v. Werra, 
    638 F.3d 326
    , 350-351 (1st Cir. 2011) (stating that a protective sweep
    is proper whether an arrest warrant, a search warrant, or
    exigent circumstances prompt the agent’s entry); United States
    v. Caraballo, 
    595 F.3d 1214
    , 1224 -1225 (11th Cir. 2010) (holding
    that once legally on board a boat due to probable cause and
    Florida marine law, marine officers could perform a protective
    sweep); United States v. Gould, 
    364 F.3d 578
    , 593 (5th Cir. 2004)
    (allowing protective sweep pursuant to consent entry) (abro-
    gated on other grounds by Kentucky v. King, 
    131 S. Ct. 1849
    , 1861
    (2011)); United States v. Taylor, 
    248 F.3d 506
    , 513 (6th Cir. 2001)
    (approving protective sweep by officer left behind while
    warrant was sought after officers initially entered with
    consent); United States v. Garcia, 
    997 F.2d 1273
    , 1282 (9th Cir.
    1993) (permitting protective sweep pursuant to consent entry);
    United States v. Patrick, 
    959 F.2d 991
    , 996–97 (D.C. Cir.1992)
    (upholding a protective search where police were lawfully on
    premises pursuant to consent) (abrogated on other grounds by
    Apprendi v. New Jersey, 
    530 U.S. 466
     (2000)). What matters are
    the specific facts that would give a reasonable officer, who is
    lawfully inside a home, a “reasonable belief based on specific
    and articulable facts which, taken together with the rational
    inferences from those facts, reasonably warrant[] the officer in
    believing that the area swept harbored an individual posing a
    danger to the officer or others.” Buie, 
    494 U.S. at 327
     (internal
    citations omitted).
    No. 13-1148                                                      11
    Starnes’ arguments about inconsistencies in the detectives’
    description of the protective sweep and its rationale are
    irrelevant. As long as the officer had a reasonable belief of the
    danger, based on specific articulable facts, any inconsistencies
    in his reporting do not matter. See 
    Id. at 327
    . As we noted
    above, a bevy of facts supports the conclusion that such a
    sweep was reasonable and prudent. In any event, the district
    court found credible the detective’s explanation that he swept
    the upper apartment for potential threats and that the search
    constituted a protective sweep irrespective of the fact that his
    report did not use this precise term. We give special deference
    to the district court’s determinations of credibility. United States
    v. Groves, 
    530 F.3d 506
    , 510 (7th Cir. 2008). We see no reason to
    upset the district court’s rational and well-reasoned findings
    on these facts if such findings were indeed necessary.
    We continue to recognize that “the sweep is a device that
    can easily be perverted to achieve ends other than those
    acknowledged as legitimate in Buie.” Burrows, 
    48 F.3d at 1017
    .
    This opinion neither expands nor contracts law enforcement’s
    right to perform such a sweep. Regardless of the context of an
    officer’s entry into a home, the same concise standard an-
    nounced in Buie stands:
    The Fourth Amendment permits a properly limited
    protective sweep in conjunction with an in-home
    arrest when the searching officer possesses a reason-
    able belief based on specific and articulable facts
    that the area to be swept harbors an individual
    posing a danger to those on the arrest scene.
    Buie, 
    494 U.S. at 337
    .
    12                                                     No. 13-1148
    The judgment of the district court is affirmed.